Ross v. Angela Dawn Rigdon & Cabinet for Health & Family Servs.
| Decision Date | 26 May 2017 |
| Docket Number | NO. 2016-CA-000872-ME,2016-CA-000872-ME |
| Parties | MICHAEL WAYNE ROSS APPELLANT v. ANGELA DAWN RIGDON AND CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, CHILD SUPPORT ENFORCEMENT APPELLEES |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM MASON CIRCUIT COURT
In 2010, Ross's and Rigdon's daughter was born in Lexington, Kentucky. Daughter resided with Rigdon in Lexington. At all relevant times, Ross resided and continues to reside in Aberdeen, Ohio.
In 2011, Ross filed for custody of daughter in the Fayette Family Court. On January 26, 2012, Ross and Rigdon entered into a domestic mediation agreement in which the parties agreed to joint custody of daughter, with daughter residing primarily with Rigdon and Ross having timesharing.1 The parties agreed Ross would pay child support of $516 per month through a wage assignment, as ordered on April 30, 2012, and effective on March 1, 2012. Ross never made any child support payments to Rigdon.
On July 19, 2012, Ross and Rigdon were married in Tennessee and a son was born a year later in Lexington. Whether Rigdon and the children resided with Ross in Ohio after the marriage is in dispute.
It is unclear from the record when Rigdon began receiving payments from K-TAP. However, as part of these payments, she assigned her rights to collect child support to K-TAP and was provided with child support enforcement services pursuant to Title IV-D of the Social Security Act, 42 U.S.C. 651 et. seq., which is administered in Kentucky as provided in KRS 205.710 et. seq., through the relevant county child support enforcement agencies under the auspices of the Cabinet for Health and Family Services, Division of Child Support. Therefore, when Ross did not pay child support, the Cabinet sought enforcement in collecting arrearages through the Fayette County Child Support Enforcement Office (Fayette CSEO). In 2013, Fayette CSEO collected $6,886 through a tax intercept which was subsequently distributed to K-TAP and Rigdon.
On January 10, 2014, Rigdon was incarcerated in Kentucky after violating the terms of her Ohio probation and the children were placed with Ross. Later, Rigdon was accepted into the Drug Court Program in Mason County. Sometime in early 2014, Ross filed a pro se divorce action in Ohio.2
In 2014, Fayette CSEO sought to collect an additional $4,466 as the balance Ross owed Rigdon for daughter's child support through December 2013. Fayette CSEO only sought to enforce the child support order through December 2013, because it was aware that in January 2014, Rigdon was incarcerated and daughter was placed with Ross. However, the child support order remained in effect.
On April 21, 2014, the Fayette County Attorney filed a motion in the Fayette Family Court action requesting an order staying Ross's ordered child support as of July 10, 2014, because daughter resided with Ross. On May 15, 2014, Rigdon petitioned the Fayette Family Court for custody of the children and filed a motion requesting that the matter be transferred to Mason County. The motion to stay child support was apparently never heard because on June 6, 2014, the court transferred the custody action to the Mason Circuit Court.
On July 16, 2014, the Ohio court entered a divorce decree dissolving the marriage between Ross and Rigdon, and determining both children were children of the marriage. The Ohio court found based on the previous judgment entered in Kentucky, jurisdiction pertaining to issues concerning the minor children, including but not limited to custody and child support, was retained by the Kentucky courts.3
Meanwhile, the Mason County Child Support Enforcement Office (Mason CSEO) took over collecting back child support from Ross. In May 2014, Ross contacted Mason CSEO and challenged Rigdon's entitlement to any money for child support. In accordance with its policies, when Mason CSEO collected an additional $4,764.00 from Ross via a tax return intercept it refrained from paying this money to cover the remaining debt until a determination could be made as to the propriety of such action by the court.
On September 19, 2014, in the Mason Circuit Court action, Ross sought temporary custody of the children and child support from Rigdon.4 On October 16, 2014, the court ordered the children to remain in Ross's care, but did not order any child support.
On April 17, 2015, the Commonwealth, through IV-D enforcement for Mason CSEO, sought a hearing to adjudicate child support arrearages owed by Ross. This motion was referred to the domestic relations commissioner.
On July 27, 2015, Ross filed multiple motions including a motion to release escrowed child support funds to him and hold a final hearing on this matter, and requested child support. The Mason Circuit Court never ruled on Ross's request for child support.5
In the hearing conducted before the domestic relations commissioner, testimony was provided by Elizabeth Simmons of the Mason County Child Support Office, Tracy Roark from K-TAP, Rigdon and Ross. Simmons established the amount Ross owed from March 1, 2012, through December 31, 2013, ($516 multiplied by twenty-two months) was $11,352. Ross was credited with paying $6,886 which was collected from an earlier tax intercept. There remained a balance of $2,038 due K-TAP and $2,428 due Rigdon for this period, which could be satisfied by the $4,764 received from the most recent tax intercept, but those funds were not yet distributed because Ross objected.
Simmons referred Ross's allegations of K-TAP fraud to the support office claims department. If her office had known Ross and Rigdon were residing together or that Rigdon was living out of state, it would have likely filed a motion to terminate support. She testified Mason CSEO stopped enforcement in 2014 because Rigdon was incarcerated and Ross had the children.
Roark testified that if a Kentucky resident moves out of the state K-TAP is discontinued. If the person then returns to live in Kentucky, it is necessary to reapply for K-TAP benefits. Roark did not provide any testimony as to the specifics involved in Rigdon's situation, such as whether Rigdon would have still been eligible for K-TAP benefits after marrying Ross.
Rigdon and Ross both testified. They agreed they married, but disagreed as to where they lived after the marriage. Rigdon testified she continued to live in Lexington separately from Ross. She worked in Lexington and children's daycare and physicians were in Lexington. Ross testified they lived together at his home in Aberdeen, Ohio, and submitted into evidence mail addressed to Rigdon at his address, forwarded there and a copy of Rigdon's signed Ohio probation agreement requiring her to live in Ohio.
On February 8, 2016, the domestic relations commissioner filed her report. The commissioner found Ross never filed a motion to modify child support, never appealed the current child support order and never filed a motion to vacate the order under Kentucky Rules of Civil Procedure (CR) 60.02.
The commissioner concluded as a matter of law that accrued child support payments may not be retroactively modified under Kentucky Revised Statutes (KRS) 403.213 unless the child support judgment was appealed and reversed, or fraud or misrepresentation was established concerning the parentage of the child. The commissioner stated that regardless of whether Rigdon committed K-TAP fraud because no motion to modify child support was ever filed, Ross had a child support obligation in the amount of $11,352 from March 1, 2012 through December 2013, and child support enforcement should distribute the funds. On February 16, 2016, Ross filed objections to the report.
On March 30, 2016, the Mason Circuit Court adopted the commissioner's report. The circuit court ordered that the $4,764 federal tax refund for Ross be used to satisfy Ross's remaining child support arrears totaling $4,466 from March 2012 through December 2013. The distribution was as follows: $2,038 to reimburse the Commonwealth for distributions made from K-TAP; $2,428 to Rigdon as back child support; and $298 reimbursed to Ross.
On April 6, 2016, Ross filed a motion to reconsider and for the court to enter the judgment as final and appealable. On May 17, 2016, the circuit court amended its earlier order to include finality language and Ross timely appealed.
Ross argues Rigdon was not entitled to receive child support from him after they married and cohabitated with their daughter in Ohio and, therefore, Rigdon should not receive any child support for this period. He also argues the circuit court erred by delivering funds collected from him to pay Rigdon's temporary assistance from K-TAP because Rigdon had no right to receive such benefits after she moved to Ohio with him and, thus, by accepting such benefits she committed fraud and should repay the Commonwealth.
As provided in KRS 403.213(1), "[t]he provisions of any decree respecting child support may be modified only as to installments accruing subsequent to the filing of the motion for modification and only upon a showing of a material change in circumstances that is substantial and continuing." Our courts have interpreted this provision to mean that "each installment of child support becomes a lump sum judgment, unchangeable by the trial court when it becomes due and is unpaid." Stewart v. Raikes, 627 S.W.2d 586, 589 (Ky. 1982)....
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